Remanded

Lachit Chandra Saloi v. the State of Assam and 3 Ors.

Gauhati HC16 Jun 2022WP(C)/1772/2016

Case brief

AI extract

What is this about?

Petitioner challenged removal from service and appellate dismissal, claiming mental illness prevented participation. High Court waived quashing dismissal order, remanding it to appellate authority to consider health contentions afresh.

What did the court decide?

Remanded to appellate authority to pass fresh order after hearing, considering petitioner's health contentions.

Lachit Chandra Saloi Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2022)

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GAHC010011412016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/1772/2016

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LACHIT CHANDRA SALOI

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S/O SRI PRASANTA SALOI, VILL. NALIPARA, P.O. BHETHUA, P.S. PATACHARKUCHI, DIST- BARPETA, ASSAM

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VERSUS

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THE STATE OF ASSAM AND 3 ORS

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REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, HOME DEPTT., DISPUR, GHY-6

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2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GHY-7

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3:THE DY. INSPECTOR GENERAL OF POLICE WESTERN RANGE ASSAM BONGAIGAON ASSAM

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4:THE SUPERINTENDENT OF POLICE GOALPAR

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Advocate for the Petitioner : J PAYENG

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Advocate for the Respondent : GA Assam

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:::BEFORE:::

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HON’BLE MR. JUSTICE NANI TAGIA

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Date of hearing : 16-06-2022

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Date of Judgment & Order : 16-06-2022

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JUDGMENT & ORDER (ORAL)

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Heard Mr. J. Payeng, learned counsel for the petitioner. Also heard Mr. J. K. Goswami, learned Addl. Senior Government Advocate appearing on behalf of the State Respondents.

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2. This writ petition has been filed, challenging the impugned order, dated 11.05.2015, issued by the Superintendent of Police, Goalpara, vide Memo. No. GLP/RA/2015/1425-37, whereby the petitioner, an ASI, has been removed from his service and the order of the appellate authority, dated 31.12.2015, passed by the Deputy Inspector General of Police(Western Range), Assam, Bongaigaon, vide Memo. No. DWR/PF/LCS/GLP/2015/1925, dismissing the appeal filed by the petitioner against the order of his removal from service, dated 11.05.2015.

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3. The petitioner who had joined as an UB Constable in the G.R.P., Assam, upon promotion to the post of ASI, was deputed to the PTC, Dergaon, on 08.04.2012, for undertaking a 4(four) weeks Refresher Course w.e.f. 09.04.2012. While the petitioner was undertaking the course, he developed some mental illness such as insomnia, dementia, etc., for which, he had to leave the PTC, Dergaon, on 14.05.2012, and reached his house at his native village i.e. Nalipara.

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Upon observing the abnormalities displayed by the petitioner in his behaviour, the family members took him to the Gauhati Medical College & Hospital(GMCH), Guwahati, for medical treatment, where the petitioner received his treatment w.e.f. 27.05.2012, until a medical certificate, dated 17.08.2015 (Annexure-D series) was issued by the

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Registrar/Resident Surgeon/Resident Physician, GMCH, Guwahati, certifying that the petitioner was an outdoor patient in Neuro Surgery Department from 27.05.2012 for a period of 39 months and 10 days and was suffering from neuropathy of lower limbs i.e. arresting of muscles due to Tuberculosis of hip joint.

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While the petitioner was undergoing his treatment, as indicated above; the impugned order, dated 11.05.2015, was passed by the Superintendent of Police, Goalpara, removing him from service with immediate effect. The order of removal from his service vide order, dated 11.05.2015, has been issued on failure of the petitioner to submit reply to the second show-cause notice of the Departmental Proceeding No. 10/2012, for the charges levelled against him for not resuming his duties after receipt of the service of notice. The petitioner has challenged the impugned order, dated 11.05.2015, on the ground that he had, neither, received any notice from the respondent authorities, nor, he was in a fit mental state to respond to the charges levelled against him in the Departmental Proceeding No. 10/2012. Accordingly, the contention of the petitioner is that he could not have been proceeded with the Departmental Proceeding No. 10/2012 for non-resuming of his duties as he was not in a fit mental state of mind as he was undertaking treatment at GMCH, Guwahati.

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The petitioner further assails the order of the appellate authority, dated 31.12.2015, which has been passed by the respondent No. 3/Deputy Inspector General of Police(Western Range), Assam, Bongaigaon, pursuant to an appeal filed by the petitioner, dated 16.10.2015, against the order of his removal from service, dated 11.05.2015.

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The petitioner contends that while passing the impugned order, dated 31.12.2015, the appellate authority has not taken into consideration the grounds urged by him, more particularly, the contentions raised by him that he was suffering from insomnia, dementia, followed by complete psychosis; a mental disorder, which

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aspect has not been taken into consideration by the appellate authority while passing the impugned order, dated 31.12.2015.

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4. The State respondents in the counter-affidavit filed, on the other hand, has stated that while the petitioner was at PTC, Dergaon, he did not consult the Unit Medical Officer for his illness (insomnia and dementia) and that he was asked to report at his place of posting but instead, he went to Patacharkuchi of Barpeta District and that, he was not a bed-ridden patient and therefore, he cannot remain absent unauthorizedly without intimation to the competent authority. As per W.T. S/No. PTC/R/Refresher Course/ ASI/2012/5038-41, dated 13.05.2012, of the Principal, PTC, Dergaon, all the ASIs of the different Districts/Units were released from the PTC, Dergaon, on 13.05.2012, to join their respective districts on completion of the Refresher Course but the petitioner did not join at his place of posting at District Headquarter, Goalpara.

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5. In paragraph No. 5 of the counter-affidavit, it has been stated by the State respondents, as under:

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“ 5. That, with regard to the statement made in paragraph 6 of the writ petition, the deponent begs to state that ASI Lachit Ch. Saloi was give ample opportunities vide (i) Memo No. GLP/R-A/2012/3701-03 dtd 06/06/2012 which he had received on 18/06/2012, (ii) Memo No. GLP/R-A/2012/6760-62 dtd. 25/10/2012 which he received on 07/11/2012, (iii) Memo No. GLP/R-A/2012/8089-90 dtd. 03/12/2012 which he received on 19/12/2012 (iv) Memo No. GLP/R-A/2014/2553-64 dt. 17/03/2015, (v) Memo No. GLP/R-A/2014/2645-64 dtd. 18/03/2014 both the memo received by his wife Smti. Bijuli Saloi on 21/03/2014, (vi) signal No. PSLA OP/14/Vol-IV/605-07 dt. 18/10/2014 of I/C Pathsala O.P. Dist. Barpeta, (vii) Memo No. GLP/R-A/2015/1030 dtd. 8/4/2015 which he received on 21/04/2015, (viii) memo No. GLP/R-A/2015/1029 dtd. 08/04/2015 received on 21/04/2015 and last his removal order issued on 11/05/2015 vide Memo No. GLP/R-A/2015/1425-27 dtd. 11/05/2015 which he received by him on 12/05/2015. Several notices are mention above were served on him and the enquiry officer of the D/P also issued notices through P.S. but no response received from the petitioner.”

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6. In paragraph No. 14 of the counter-affidavit filed by the State respondents, it has been further stated that the petitioner did not intimate about the disease he was suffering from and the medical treatment he was receiving and hence, it cannot be admitted that he was a person of unsound mind when the Departmental Proceeding No. 10/2012 was initiated against him by the respondent authorities.

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7. Mr. Payeng, learned counsel for the petitioner, submits that since the petitioner was a mentally unsound person at the time when he remained absent from duty as well as at the time when the Departmental Proceeding No. 10/2012 was drawn-up against him; he could not have been proceeded with the proceeding as a person of unsound mind cannot effectively participate in such a proceeding. The learned counsel accordingly submits that the order, dated 11.05.2015, removing the petitioner from his service, needs to be interfered with by the Court.

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8. Insofar as the impugned order, dated 31.12.2015, passed by the appellate authority is concerned, Mr. Payeng, learned counsel for the petitioner, submits that the appellate authority while passing the impugned order, dated 31.12.2015, had not taken into consideration the contentions raised by the petitioner, more particularly, the health status of the petitioner. Had the appellate authority taken into account the health status of the petitioner, which he was suffering from at the time when the Departmental Proceeding No. 10/2012 was initiated against him, as highlighted in the appeal filed by him; the decision by the appellate authority could have gone in his favour. Accordingly, the appellate authority is liable to be directed for a fresh order on the appeal filed by the petitioner after taking into consideration all the contentions raised in the said appeal.

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9. Mr. Goswami, learned Addl. Senior Government Advocate, on the other hand, submits that the petitioner was given ample opportunity to participate and respond to the Departmental Proceeding No. 10/2012 initiated against him.

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By referring to the counter-affidavit filed by the State respondents and the record which is available with him, Mr. Goswami, learned Addl. Senior Government Advocate, submits that the petitioner was first intimated by a memo being Memo. No. GLP/RA/2012/3701-03, dated 06.06.2012, by the Superintendent of Police, Goalpara, whereby he was directed to report for his duty within a period of 7 days. The said Memo, dated 06.06.2012, was received by him on 18.06.2012. Thereafter, another Memo being Memo. No. GLP/R-A/2012/6760-62, dated 25.10.2012, asking the petitioner to join his duty within a period of 3 days, was issued by the Superintendent of Police, Goalpara, which was also received by him on 07.11.2012. As the petitioner did not resume his duty even after issuance of the aforesaid Memos., as indicated above; a show-cause notice, dated 03.12.2012, vide Memo. No. GLP/R-A/ 2012/808990, was issued by the Superintendent of Police, Goalpara, which was received by him on 19.12.2012. The petitioner, thereafter, was sent with further 2(two) Memos vide Memo. No. GLP/R-A/2014/2553-64, dated 17.03.2015(which the learned Addl. Senior Government Advocate on the basis of the record available with him, submits, to be of dated 17.03.2014) and vide Memo. No. GLP/R-A/2014/2645-64, dated 18.03.2014, both of which were received by Smti. Bijuli Saloi, wife of the petitioner, on 21.03.2014. Thereafter, another Memo being Memo No. GLP/R-A/2015/1030, dated 08.04.2015(which is stated by the learned Addl. Senior Government Advocate to be the second show-cause notice) was received by the petitioner on 21.04.2015.

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Despite the aforesaid intimations given to the petitioner, from time to time, he remained non-responsive and the order, dated 11.05.2015, was passed by the respondent authorities. Accordingly, Mr. Goswami, learned Addl. Senior Government Advocate, submits that the petitioner had been afforded ample opportunity to defend himself which he had failed to do so and under such circumstances; the order, dated

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11.05.2015, was accordingly passed by the respondent authorities against him and as such, there is no legal infirmity in the order, dated 11.05.2015.

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Mr. Goswami, learned Addl. Senior Government Advocate, by referring to the medical certificate, dated 17.08.2015, which is a certificate indicating that the petitioner was an outdoor patient in Neuro Surgery Department at GMCH, Guwahati, from 27.05.2012, submits that the said certificate does not cover the entire period of his absence as he was released from PTC, Dergaon, on 13.05.2012. The learned Addl. Senior Government Advocate, therefore, submits that the petitioner on the basis of the medical certificate, dated 17.08.2015, has failed to explain his absence from duty in between the period from 13.05.2012 to 27.05.2012.

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10. Rival contentions advanced by the parties have received due consideration of the Court and materials placed on record have also been perused.

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11. The petitioner, while working as an ASI, G.R.P. Assam, was deputed to undergo 4(four) weeks Refresher Course at PTC, Dergaon, w.e.f. 09.04.2012, and while undergoing the Course, he had gone missing from there without resuming duty at his place of posting which eventually resulted in passing of the order, dated 11.05.2015, removing him from service, is not in dispute. The petitioner was directed to join his duty by the Superintendent of Police, Goalpara, vide letter, dated 06.06.2012, followed by another letter, dated 25.10.2012, which letters were stated to have been duly received by the petitioner on 18.06.2012 and 07.11.2012, respectively, in the counteraffidavit filed by the State respondents, have also not been disputed by the petitioner by filing any affidavit-in-reply. The petitioner has also not disputed the receipt of the Memos, dated 17.03.2014 and 18.03.2014, respectively, by his wife Smti. Bijuli Saloi, as well as the receipt of the second show-cause notice, dated 08.04.2015, on 21.04.2015, by the petitioner himself, as stated in paragraph No. 9 of the counter-

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affidavit filed by the State respondents.

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12. In the absence of any denial by the petitioner to the receipt of various memorandums issued by the respondent authorities including the show-cause notices as highlighted hereinabove; it cannot be said that the petitioner, or, for that matter, the wife of the petitioner, was unaware of the Departmental Proceeding No. 10/2012 that was initiated by the respondent authorities against the petitioner for remaining absent from his duty. Accordingly, it cannot be the case of the petitioner that the respondent authorities did not provide him with adequate opportunity to defend himself in the proceeding that was initiated against him.

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13. The only bone of contention would perhaps be that whether the petitioner was actually in a state of unsound mind making it impossible for him to participate in the Departmental Proceeding No. 10/2012 that has been initiated against him by the respondent authorities.

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Even assuming that the petitioner was in a state of unsound mind which rendered his participation in the Departmental Proceeding No. 10/2012 initiated against him by the Department, impossible; the said fact of his inability to participate in the Departmental Proceeding No. 10/2012 was never brought to the notice of the Department concerned by the petitioner, or, any of the representative(s) of the petitioner. Under such circumstances, the order, dated 11.05.2015, removing the petitioner from his service, was passed by the respondent authorities. The petitioner, on recovery of his health, preferred an appeal before the appellate authority vide appeal, dated 16.10.2015, against the order of his removal from service, dated order, dated 11.05.2015.

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14. On perusal of the contents of the appeal, dated 16.10.2015, preferred by the petitioner before the appellate authority; it is noticed that the petitioner has advanced a series of contentions including his health status at the time when he was proceeded departmentally by the respondent authorities. The said appeal, dated 16.10.2015, preferred by the petitioner, had been disposed of by the appellate authority vide impugned order, dated 31.12.2015. The relevant paragraph of the impugned order, dated 31.12.2015, is extracted hereinbelow, which paragraph would indicate the manner in which the appeal preferred by the petitioner, has been dealt with and disposed of by the appellate authority:

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“ After having gone through all relevant records including the order of the Disciplinary Authority; the appeal petition; the para-wise reply of the Disciplinary Authority on the appeal petition, etc; after hearing the appellant in person; after carefully considering the appeal petition and after duly applying my mind, I find no ground/reason to interfere with the order of the Disciplinary Authority. I am satisfied that the Disciplinary Authority has passed his order after due application of mind and after carefully considering all relevant records, facts and circumstances. In a disciplined force, it is a serious misconduct to become unauthorisedly absent (for years in this case) without any reasonable justification.”

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15. On perusal of the impugned order, dated 31.12.2015, I find that the appellate authority has not discussed on the contentions raised by the petitioner in his appeal, dated 16.10.2015, including the health status of the petitioner at the time when he was proceeded with departmentally, leading to passing of the order, dated 11.05.2015, by the respondent authorities thereby removing the petitioner from his service.

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16. It is settled position of law that the appellate authority while disposing of the appeal preferred, is required to take into consideration all the contentions raised in the appeal and pass appropriate order(s) thereafter. Since, in the instant case, the same has not been found to have done by the appellate authority on perusal of the impugned order, dated 31.12.2015, and also having regard to the entire facts and

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circumstances of the case; I, therefore, deem it appropriate to dispose of this writ petition by remanding the matter back to the appellate authority to pass a fresh order on the appeal, dated 16.10.2015, preferred by the petitioner, by taking into consideration the entire contentions raised by him and also after affording both the parties an opportunity of hearing.

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17. Accordingly, this writ petition is hereby disposed of by directing the respondent No. 3/Deputy Inspector General of Police (Western Range), Assam, Bongaigaon , to pass a fresh order on the appeal, dated 16.10.2015, preferred by the petitioner against the order, dated 11.05.2015, whereby he was removed from service, by taking into consideration, the entire contentions raised by him in the appeal, dated 16.10.2015, and also by affording both the parties an opportunity of hearing, within a period of 3(three) months from the date of receipt of a certified copy of this order.

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18. Consequently, to enable passing of a fresh order, in the manner indicated hereinabove; the impugned order, dated 31.12.2015, passed by the respondent No. 3/Deputy Inspector General of Police(Western Range), Assam, Bongaigaon, is hereby set aside and quashed.

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19. The writ petition stands disposed of, in terms above.

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JUDGE

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Comparing Assistant

Lachit Chandra Saloi v. the State of Assam and 3 Ors.

Case brief

What is this about?

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Lachit Chandra Saloi v. the State of Assam and 3 Ors.

Case brief

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